In accordance with the live stock contract, pleaded by the carriers, and in evidence here, as set out in the majority opinion, the stipulation is based upon a freight rate, "less than the rate charged for shipments transported at carrier's risk," etc.
It is now a familiar subject, definitely adjudicated by the Supreme Court of the United States, that Congress has taken possession of the subject of liability of railway carriers, on account of interstate shipments, and the Interstate Law, particularly including the Carmack Amendment, and the rules of decisions prevailing in the federal courts, in regard to the interpretation and application of said law, supersede all laws and policy of any state, embracing said subject. Adams Express Co. v. Croninger, 226 U.S. 491, 33 S. Ct. 148, 57 L. Ed. 314, 44 L.R.A. (N. S.) 257; Railway Co. v. Miller, 226 U.S. 513, 33 S. Ct. 155, 57 L. Ed. 323; Railway Co. v. Carl, 227 U.S. 639, 33 S. Ct. 391, 57 L. Ed. 683; M., K. T. Ry. Co. v. Harriman Bros., 227 U.S. 657, 33 S. Ct. 397, 57 L. Ed. 690.
The Supreme Court said, in the case of M., K. T. Ry. v. Harriman Bros., supra, construing the Hepburn Act, and the Carmack Amendment:
"The validity of any stipulation in such a contract which involves the construction of the statute, and the validity of a limitation upon the liability thereby imposed, is a federal question to be determined under the general common law, and, as such, is withdrawn from the field of state law or limitation."
The provision in the contract, requiring notice of a claim for damages, in the case of Mo. Pac. Ry. Co. v. Harris, 67 Tex. 166, 2 S.W. 575, is as follows:
"Said party of the second part further agrees that, as a condition precedent to his right to recover any damages for any loss or injury to said stock, he will give notice in writing of his claim therefor to some officer of said party of the first part, or its nearest station agent, before such stock is removed from the place of destination above mentioned, or from the place of the delivery of the same to the party of the second part, and before such stock is mingled with other stock."
The opinion of the majority of the court in the present case is practically based upon the Harris Case, supra, as one of controlling influence, determinative of the common law upon this subject. In that cause Justice Stayton said that it was contemplated that the animals should be transported over the line of the appellant's railway, which did not extend to the place of destination, and *Page 560 that from the end of the initial carrier's line they should be transported over another railway, through the state of Illinois, to the destination.
As disclosed by the opinions of the Supreme Court of the United States, above cited, under the Hepburn Act and the Carmack Amendment, we know that the identity, as well as the agency, of all carriers, is complete from the initial to the delivering carrier — the agent of the last carrier is now, under the law, the representative of the initial carrier for all purposes relative to the interstate shipment, as much so as if he were in the direct employment of that carrier. The erstwhile stipulations of several liability of the different connecting carriers transporting the shipment are now void under the Carmack Amendment. One of the dominating features of the act is the prescribed issuance of a written bill of lading, or receipt for the goods, by the initial carrier, and another intermediate carrier cannot impose upon a shipper an additional contract while in the course of transportation — the same is without consideration. The interstate carrier may make reasonable stipulations for its protection, but not permitted, of course, to contract against its own negligence. In this case the Chicago, Rock Island Gulf Railway Company originated the shipments (both shipments accompanied by the owner, the shipper), and the Chicago, Rock Island Pacific delivered the shipments at destination (Kansas City, Mo.). One shipment arrived between 6 and 7 a. m., of one day, and the other about noon, or a little after, of another day. The shipper knew then the injury to his cattle on account of the treatment in the course of transportation and was acquainted with the shrinkage per head, and the damage in dollars per animal. He said that he did not himself make a presentation of his claim within 24 hours, as prescribed by the contract, but instructed his agent, the commission company, to whom the cattle had been consigned, to make the claim, but did not know whether it had been done.
When the cattle arrived at destination, he knew approximately the shrinkage and injury, as much so as he did when he gave his opinion under oath as to the injury to the cattle and the resultant damage to him when they arrived at destination; and I am only discussing that damage and injury within the purview of this contract, and the amount of which, I, of course, do not question. If I understand the meaning of the two contracts — the stipulation in this record, and the one in the Harris Case, supra, passed upon by Justice Stayton — they are essentially different. In the Harris Case the shipper was required to present his claim to some officer or agent of the initial carrier, or its nearest station agent, before the stock was removed from the place of destination, and before the same was mingled with other stock, with the attendant condition that the initial carrier's railway did not reach the place of destination; and Justice Stayton said that the place of delivery being beyond the line of the initial carrier, and in another state, no presumption can arise that the initial carrier had an officer or station agent near the place of destination. The stipulation in this record prescribes that the shipper shall give his notice, either to a general officer, claim agent, or station agent of the first party, or to such representatives of the delivering carrier as well, before the stock is removed from the place of destination and mingled with other stock, to be served in one day after the delivery of said stock at its destination.
I think to say that it could not be presumed that the Chicago, Rock Island Pacific, which delivered these cattle at destination, did not have a station agent at destination, upon whom notice could be served, or some subagent within the same office, every hour and every minute of the day, is wholly untenable; as much so as to say that some prominent bank at Kansas City, Mo., did not have a teller in its banking house during the period of banking hours. It may be said that the answer in this cause should still show that, notwithstanding it may be presumed that the carrier had an agent at destination, such agent was so situated and was so accessible that the contract to give notice to such representative was reasonable. We are to presume that the shipper knew the contract; and, accompanying the cattle, his testimony shows, as to the injuries I am considering, he was acquainted with the accrued injury to the cattle at destination on account of the negligence of the carrier in transportation, and such shipper must be treated as a man of ordinary intelligence with a reasonable capacity to "move" under the condition confronting him; and without knowing how to argue it, it seems to me that viewing a shipper as of that standard (if the carrier had a station agent at Kansas City, Mo.), with any kind of a "move" on him, he could present the notice in writing of the claim for damages, at the office of the station agent, within the 24 hours and have a number of hours to spare. And if the agent, or some one for him, did not inspect the cattle commensurate with the immediate necessity to so do, that would not be the shipper's fault.
Neither have we the question in this case, as was in the Harris Case, of casting the burden of responsibility upon the shipper, of determining the character of the agent within the meaning of the contract, upon whom to serve the notice. When the contract says delivery to the station agent of the delivering line, the shipper would certainly know the position of a station agent at destination. Wichita Falls Western Ry. Co. v. Koch,47 Kan. 753, 28 P. 1014. And I think an agent at destination at its station, whether handling exclusively freight or passengers, at such station, is its station agent within this contract. *Page 561
As stated, I do not think we are concerned in this record with injuries of an undeveloped nature which could not be determined before the stock was removed from the point of destination, as in the case of Ormsby v. Union Pacific Ry. Co. (C. C.) 4 F. 170, where it is held that the contract was of no effect as to sickness, the extent of which could have been known for some time after the removal of the stock from the car; and likewise in the case of Railway Co. v. Harwell, 91 Ala. 340,8 So. 649, where the shipper did not discover, and by ordinary diligence could not have discovered, the injury and its extent before the animals were removed; also, the case of Giles v. Atchison, Topeka Santa Fé By. Co.,92 Kan. 322, 140 P. 875, where the court speaks of an exception to the rule where the shrinkage resulted from the cattle having to be carried to the next day's market as to which notice of loss was unnecessary. The case of Railway Co. v. Wright, 78 Kan. 94, 95 P. 1132, by the Supreme Court of Kansas, affords a discussion of exceptions and distinctions with reference to these matters. There are many cases holding that a carrier is entitled to notice of a claim for damages, for the purpose of protection to it, before the cattle are removed from destination and mingled with other stock, on the theory that while the matter is still fresh, and for the purpose of instituting inquiries and furnishing itself with information on the subject of its liability and the extent thereof.
The Circuit Court of Appeals of the Ninth Circuit, in the case of Kidwell v. Oregon Short Line Ry. Co., 208 F. 3, 125 C.C.A 313, expressed it in this manner (referring in this language to the right of the shipper to examine the cattle):
"If, on arrival of live stock at destination, the shipper who, as in this case, accompanies them, finds that they have been injured by the negligence of the carrier, it is a reasonable provision of the shipping contract that he give notice to the carrier, of the extent, nature, and amount of his claim for damages, and that this shall be done before the stock are mingled with other stock, in order that the carrier may have the opportunity to make timely investigation and protect itself against fictitious or imaginary claims."
As another illustration, I cite the case of Railway Co. v. Ladd,33 Okla. 160, 124 P. 462, involving a 50 hours' delay to Kansas City, and a loss of extra flesh to the cattle, at 50 pounds per head. The court said:
"From the very nature of the injuries alleged to have been inflicted upon the cattle, it must have been apparent at once upon their arrival at their destination that they were seriously damaged, and there was nothing to prevent plaintiff from making the necessary claim, and give the railroad company an opportunity to examine the livestock before it was removed from their premises and mingled with other cattle."
Justice Brown, of the Supreme Court of the United States, in the case of The Queen of the Pacific, 180 U.S. 49, 21 S. Ct. 278, 45 L. Ed. 422, said, in speaking of the case of Railway v. Lockwood, 17 Wall. 357, 21 L Ed. 627:
"It was held by this court that common carriers may impose almost any just and reasonable limitation upon their common-law liability, not amounting to an exemption from the consequences of their own negligence. The methods of transportation have changed so radically during the century which has just closed that it seems almost necessary to the proper protection of a carrier, in transacting the enormous business of railway and steamship lines, that he should have the power by just and reasonable limitations, incorporated in his contract or brought to the attention of his shippers, to place some restrictions upon the unlimited liability of the common law," etc.
The justice mentioned particularly articles of great value which are carried without information of their character, and then further says:
"That persons intending to make claims for losses should manifest their election to do so as soon as the circumstances can by reasonable diligence be ascertained. The law recognizes the fact that the measure of liability originally applied to a carter's wain or a waterman's hoy may often be illy adapted to the exigencies of modern commerce."
In this cause the federal Supreme Court cites the Harris Case and the case of Pacific Express Company v. Darnell (Sup.) 6 S.W. 765, and I do not at all construe its opinion as impliedly approving either of the cases in any manner.
The case of Goggin v. Kansas Pacific Railway Co., 12 Kan. 324, and quoted from in the opinion, is cited by the Supreme Court of the United States argumentatively as sustaining the position of the court in deciding the particular cause; the Goggin Case being one requiring notice of damage to live stock, even before the stock was unloaded from the cars, and though the question of pleading that the carrier had an agent and the character of same, upon whom notice could be served, was not involved, the tendency of the Goggin Case is in entire opposition to the tendency of the Harris Case as applied to this case, and the decisions of the Supreme Court of this state, following it — that is, if you say that the Harris Case is the same as this case upon the facts. The Kansas Supreme Court said:
"The defendant (the carrier) was engaged in transporting great numbers of cattle over its road, which were shipped further to market, or so commingled with other stock that it would be impossible to distinguish one car load from another, unless attention was called to them immediately; and the object of the notice was to relieve the company from false and fictitious claims, by having an inspection of the cattle before they were removed or mingled with other cattle, and proper damages ascertained and allowed — of which reasons the plaintiff had full knowledge, and still chose to ship at reduced special rates. The reasons are cogent, and we are unable to see how it contravenes public policy that a special contract at reduced rates should stipulate that reasonable notice of injury should be given."
The Supreme Court of the United States particularly quoting this language from the case: *Page 562
"The parties were competent to make the contract and did make it, and it must be held good unless it is contrary to public policy" — which the Kansas Supreme Court held that it was not.
The cattle shipping cases hereinafter cited by me to my mind clearly establish the proposition that, if the contract is reasonable, the carrier is entitled to notice at destination, before the stock are removed or mingled with other stock, of the claim for damages. Some of the courts and the decisions cited seem to treat contracts of this character as reasonable without discussion, as illustrated by the case of Clegg v. Railway Co, 203 F. 971, 122 C.C.A. 273, decided by the Circuit Court of Appeals of the Eighth District.
A libel case, in admiralty (The Westminster, 127 F. 681, 62 C.C.A. 406), by the Circuit Court of Appeals of the Third Circuit, bears upon this question. The case was one to recover damages for injury to merchandise, and the bill of lading provided that neither the shipowner, nor his agents, or servants, should be liable for any claim, "notice of which is not given before the removal of the goods." The court said:
"No doubt the consignees were entitled to a suitable opportunity to make an intelligent claim, but they had it. Whatever may be the case where the injury is latent and the liability doubtful, neither can be alleged of what, on the face of things, appeared here."
What appeared upon the face of things, as I construe the case, was the condition that:
"It was known at once, on the arrival of the ship and the discharge of the cargo, that the goods were seriously damaged. * * * There was nothing * * * to prevent the parties interested from * * * making the necessary claim. * * * It is true (said the court) that, even with this construction, the time limit is a short one, but not so short in the present instance, as is shown above, as to abridge unduly the rights of the parties. Provisions equally stringent have been sustained in several cases. In Moore v. Harris, L. R. 1 App.Cas. 318, and in Angel v. Cunard Steamship Co. (D.C.) 55 F. 1005, the condition — the same as here — was for notice before removal. So was it, with regard to live stock shipments, in Southern Ry. v. Adams, 115 Ga. 705, 42 S.E. 35; Wood v. Southern Ry., 118 N.C. 1056, 24 S.E. 704; Wichita Ry. v. Koch,47 Kan. 753, 28 P. 1013; and Rice v. Kansas Pacific Ry.,63 Mo. 314. While in Kyle v. Buffalo R. R., 16 U. C. C. p. 76 (24-hour limit); in St. Louis R. R. v. Hurst, 67 Ark. 407, 55 S.W. 215 (a 30-hour limit); in Lewis v. Great West Ry., 5 Hurlst. Norm. 867, and Moore v. Great Northern R. R., L. R. Irish, 95 (a three-day limit); in Black v. Wabash R. R., 111 Ill. 351, 53 Am.Rep. 628 (one of five days) — were all enforced."
While, under the condition of the pleadings and evidence here, I am not concerned with the burden of proof; however, as to the question of the burden of proof in giving the notice, the Circuit Court in that cause said:
"The confusion, if any (upon this subject), grows out of supposing that want of notice was to be proved in the first instance by the respondent. The giving of notice was an affirmative fact peculiarly within the knowledge of the libelants (the plaintiffs), both with regard to the time when, and the agent or representative of the shipowners to whom, it was given; and, the want of it having been set up in the answer, * * * it was incumbent on the libelants to prove it, as a condition precedent to the right to recover, * * * even if the stipulation could be regarded in the nature of the statute of limitations, * * * which it is declared in Express Co. v. Caldwell [21 Wall. 264], 22 L. Ed. 556, that it is not, still, having been pleaded, and the libelants thereby notified that it would be relied upon, they were bound by every rule to show compliance, or that which would excuse it, or be barred."
Since the act of March 3, 1891, establishing the Circuit Court of Appeals, the Supreme Court of the United States has no jurisdiction to review the judgment of the Circuit Court in admiralty causes by appeal or upon a writ of error. They have to be certified to the Supreme Court by the Circuit Court, or the whole case may be required by the Supreme Court to be sent up by certiorari, issued for that purpose, or otherwise. The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320; Oregon Ry. Nav. Co. v. Balfour, 179 U.S. 55, 21 S. Ct. 28, 45 L. Ed. 82; United States v. The Three Friends, 166 U.S. 1, 17 S. Ct. 495, 41 L. Ed. 897. The Supreme Court of the United States granted the writ in The Queen of the Pacific, but denied it in The Westminster.
From the array of cases upon the subject, of notice, before cattle are removed from destination, I do not think it can be said, because the cattle are intended for immediate sale, for that reason, of itself, the carrier is not entitled to notice. Hence, if upon arrival at destination the shipper and owner accompanying the cattle knew of the damage (and it is clear to me in this case that he did), and if it should be asserted that the delivering carrier in this case had a station agent at destination upon whom notice could have been served, and that the shipper, as a reasonably intelligent man, could, at Kansas City (which we judicially know is a large commercial center, Parks v. Jacob Dold Packing Co., 6 Misc.Rep. 570, 27 N.Y.S. 289), within a reasonably short time, could have notified some station agent or some one in his office under him, of said claim, then the carrier is entitled to notice. Except as to the question of waiver, and excluding the cases when the injury is of such a character, as of an undeveloped nature, or where the shipper is unable to inform the carrier of the injury, which do not come within the purview of the contract, in the very nature of things, I am unable to conceive of supervening conditions, where the shipper knows the injury when he arrives at destination with his stock, which would prevent him from giving the notice, as that such supervening conditions would make the contract unreasonable under the decisions, except the one of not being able to find the agent upon whom to serve the notice; and being convinced in this character of case, and under the contract, from the "swing" of the law *Page 563 upon the subject, that such a position is untenable, I respectfully dissent from the majority holding.
I submit the following authorities, some of which are already cited, upon interstate shipments, which I think, when tested, bear out the contention made here, whatever one may think of the policy of such a rule — with which I am not concerned: Clegg v. St. L. S. F. R. Co., 203 F. 971, 122 C.C.A. 273; McElvain v. Railway Co., 176 Mo. App. 379,158 S.W. 465; Giles v. Atchison, Topeka Santa Fé, 92 Kan. 322, 140 P. 875; Missouri Pacific R. Co. v. Park, 66 Kan. 248, 71 P. 586; St. L., I. M. S. Ry. Co. v. Shepherd (Ark.) 168 S.W. 137; Railway Co. v. Ayers,63 Ark. 331, 38 S.W. 515; Smith v. Chicago, Rock Island Pacific,112 Mo. App. 610, 87 S.W. 9; Owen v. Louisville N. R. Co., 87 Ky. 626,9 S.W. 698; Southern Ry. Co. v. Tollerson, 129 Ga. 647, 59 S.E. 799; Pavitt v. Lehigh Valley R, Co., 153 Pa. 302, 25 A. 1108; Western Ry. Co. v. Harwell, 91 Ala. 340, 8 So. 649; Parrill v. Cleveland, C., C. St. L. R. Co., 23 Ind. App. 638, 55 N.E. 1026; Selby v. Wilmington Western,113 N.C. 588, 18 S.E. 88, 37 Am. St. Rep. 635; Austin v. Railroad,151 N.C. 137, 65 S.E. 757; Wichita Western Railroad v. Koch, 47 Kan. 753,28 P. 1013; Southern Ry. Co. v. Adams, 115 Ga. 705, 42 S.E. 35; Kidwell v. Oregon Short Line Ry. Co., 208 F. 3, 125 C.C.A. 313; Railway Co. v. Cake, 25 Okla. 227, 105 P. 322.